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Andhra High Court · body

2006 DIGILAW 962 (AP)

Yarlagadda Venkata Krishna Rao v. State of A. P.

2006-08-10

P.LAKSHMANA REDDY

body2006
ORDER : 1. This Criminal Petition is filed under Section 407 Cr. P.C. seeking transfer of C.C. No. 167 of 2000 from the file of the II Additional Judicial Magistrate of First Class, Machilipatnam to any other Court at Secunderabad. 2. The relevant facts in brief are as follows: The second respondent herein filed private complaint before the police alleging that the petitioner-accused committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short “the Act”). The learned Magistrate forwarded the same to the police and the police after investigation filed charge sheet against him and the learned Magistrate took the case on file and commenced trial. 3. During the course of trial the petitioner has come forward with this petition for transfer of the case from Machilipatnam to any other Court at Secunderabad on the ground that he met with an accident and received grievous injuries and he is unable to attend the Court at Machilipatnam and therefore the case may be transferred to any other Court in twin cities. 4. The learned counsel for the petitioner reiterated the contentions raised in the petition. 5. The learned Additional Public Prosecutor opposed the transfer of the case. The point that arises for determination in this petition is: Whether this is a fit case to transfer C.C. No. 167 of 2000 from the file of the II Additional Judicial Magistrate of First Class, Machilipatnam to any other Court at Secunderabad? POINT: 6. It is not disputed that the offence took place within the jurisdiction of the Court at Machilipatnam and the complainant and his witnesses reside at Machilipatnam. Merely because the accused received injuries and he is unable to attend the Court at Machilipatnam, the case cannot be transferred to the Court situate where the accused resides. 7. Admittedly the trial has been commenced and there is no need for the accused to be present for each and every adjournment and he can avail Section 317 Cr. P.C. by filing a petition before the Court to proceed with the trial in his absence and in the presence of his counsel. 8. At this stage, the learned counsel for the petitioner submitted that the Courts below are entertaining petitions filed under Section 317 Cr. P.C. by filing a petition before the Court to proceed with the trial in his absence and in the presence of his counsel. 8. At this stage, the learned counsel for the petitioner submitted that the Courts below are entertaining petitions filed under Section 317 Cr. P.C. only for adjourning the cases and not for proceeding with the trial or enquiry of the cases in the absence of accused even if he is represented by a counsel. If really such is the practice prevailing in the trial Courts, it is to be deprecated. When the accused is represented by a counsel and the physical presence of the accused is not required to proceed with the trial and when an application is filed on behalf of the accused requesting the Court to proceed with the trial in his absence but in the presence of his counsel, there is no justification for any Court to refuse to proceed with the trial of the case except in cases where the witnesses are required to identify the accused. Section 317 Cr. P.C. is incorporated in the Code to enable the Court to proceed with the trial even in the absence of sole accused or one of the accused. The Court can record the same reason viz. filing of the application by the accused and proceed with the trial in the absence of accused. Whenever physical presence of the accused is required i.e. at the time of framing of charges, examination of accused under Section 313 Cr. P.C. etc. the Court may insist his presence if the accused is not represented by counsel on special vakalat under Section 205 Cr. P.C. The Courts are obligated to conduct trial in the presence of the accused for the reason that no incriminating evidence shall be recorded behind the back of the accused. In other words, the accused is given a right to insist for his presence at the time of recording evidence against him. If the accused files an application waiving his right to be present at the time of recording evidence against him and requesting the Courts to proceed with the trial in his absence no court can refuse to proceed with the trial in his absence unless the identification of the accused in Court by the witnesses is necessary. If the trial Courts fail to avail the enabling provision contained in Section 317 Cr. If the trial Courts fail to avail the enabling provision contained in Section 317 Cr. P.C. it affects the quick disposal of cases and also causes lot of inconvenience to the witnesses and also the co-accused if any. For example, in a case where number of persons are arrayed as accused, one of them or some of them may remain absent for valid and sufficient reasons on several occasions and if the Court does not proceed with the trial of the case on account of the absence of one of the accused, the Court may not be able to dispose of such case at the earliest. Even on the dates on which the cases are posted for examination of accused under Section 239 Cr. P.C. or for framing of charges or for examination of accused under Section 313 Cr. P.C. if some of the accused could not be present, nothing prevents the trial Courts to proceed with such examination of the accused in piece meal in the interests of quick disposal of cases and also to avoid harassment to the co-accused. The trial Courts are advised to make use of the enabling provision contained in Section 317 Cr. P.C. for quick disposal of cases and to avoid unnecessary adjournments. 9. Here is a case where the complainant and the accused are known to each other. Therefore, there is no need for the physical presence of the accused on each and every adjournment and he can certainly request the Court to dispense with his presence and to proceed with the trial in his absence and in the presence of his counsel. 10. Hence, I do not find any force in the contention of the learned counsel for the petitioner. However, in this case the Magistrate is directed to dispense with the presence of the accused during the stage of trial except on the date of examination under Section 313 Cr. P.C. and on the date of pronouncement of judgment, on a petition filed by the accused under Section 317 Cr. P.C. Thus, this point is held accordingly. 11. In the result, the criminal petition is dismissed giving liberty to the petitioner to file a petition under Section 317 Cr. P.C. and on the date of pronouncement of judgment, on a petition filed by the accused under Section 317 Cr. P.C. Thus, this point is held accordingly. 11. In the result, the criminal petition is dismissed giving liberty to the petitioner to file a petition under Section 317 Cr. P.C. before the trial Court to dispense with his presence on the dates on which he is unable to attend the Court and on such application, the Magistrate shall proceed with the trial in the absence of the accused but in the presence of his counsel.